Toghill v. Commonwealth, 768 S.E.2d 674

Toghill, an adult, emailed a law-enforcement officer posing as a minor and proposed oral sex.
He was indicted under Code § 18.2-374.3 for Internet solicitation of a minor; trial charged him with soliciting an act prohibited by § 18.2-361(A).
A jury convicted Toghill and the circuit court sentenced him to five years’ imprisonment; he did not argue § 18.2-361(A) was unconstitutional at trial.
On appeal, Toghill challenged § 18.2-361(A) as facially unconstitutional in light of Lawrence v. Texas and the Fourth Circuit Moose decision; the Court of Appeals affirmed the circuit court.
Virginia Supreme Court applied Rule 5:25 and sua sponte considered whether § 18.2-361(A) is facially unconstitutional; concluded § 18.2-361(A) is not facially unconstitutional and that an as-applied remedy is appropriate to exclude unconstitutional applications while leaving constitutional ones in force.
Court affirmed the Court of Appeals.”

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is § 18.2-361(A) facially unconstitutional after Lawrence?	Toghill—facial invalidity under Lawrence.	Commonwealth—Lawrence does not render § 18.2-361(A) facially invalid.	Not facially unconstitutional; no standing to challenge facial validity.
Does Toghill have standing to challenge facial validity given as-applied enforcement?	Toghill's as-applied challenge suffices to attack facial validity.	Law applies only to Toghill's case; can't attack broader facial scope.	Toghill lacks standing to challenge facial validity; no facial invalidation.
What remedy applies when statute is constitutional as applied but unconstitutional in some applications?	Ayotte framework supports broader relief.	Limit to as-applied remedy; avoid rewriting statute.	Apply as-applied remedy; nullify unconstitutional applications while leaving rest intact.
Should the Fourth Circuit Moose decision affect Virginia review?	Moose signals constitutional issue.	Moose is persuasive but not binding; Virginia may decide.	Moose not binding; treat as persuasive, not controlling; apply Virginia remedy.

Lawrence v. Texas, 539 U.S. 558 (U.S. 2003) (private, consensual adult sexual conduct protected; does not involve minors)
McDonald v. Commonwealth, 274 Va. 249 (Va. 2007) (upheld § 18.2-361(A) as applied to adults/minors context prior to Ayotte framework)
Moose v. MacDonald, 710 F.3d 154 (4th Cir. 2013) (held § 18.2-361(A) facially unconstitutional (persuasive authority))
Ayotte v. Planned Parenthood, 546 U.S. 320 (U.S. 2006) (remedial framework for constitutionality: partial invalidation preferred)
Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (U.S. 2008) (facial challenges disfavored; limits on overbreadth)
Broadrick v. Oklahoma, 413 U.S. 601 (U.S. 1973) (standing to challenge if statute unconstitutional as applied)
Jerman v. Commonwealth, 263 Va. 88 (Va. 2002) (Rule 5:25 not satisfied when not raised at trial; ends of justice considerations)